The second dismissal by that court was related to my case against defendant Jorge Schcolnik. Here are links to my response to the defendant's motion, the exhibits of that response and the court's order.
My answer to the defendant's motion
Exhibits
Dismissal Order 2
They were very clearly trying to avoid service and gave addresses in their SEC filings that more than one process server reported as bad [exhibits 4 and 5]. They claimed that the first address was changed on 11/8/2012 but they did not report that until their SEC 10-k report on 4/16/2013.This meant had I even tried to serve on the company address from the first day after I filed my complaint on 1/17/2013 it would have not made any difference until 4/16/2013 when they announced their new address. Then when I tried to serve on the new address ,again more than one process server reported it as bad [exhibits 4 and 5]. even after less than 10 days and 17 days from when they announced it on 4/16/2013. Despite that they came back on 5/21/2013 to report in their 10-Q SEC filing, with the defendant still holding the highest executive position, that bad address again as their current address. They even kept declaring in their SEC reports that they don't know of any entity contemplating filing a lawsuit against them despite the fact that I declared such intention at the top of my scheduled 13D filing in April 2012 [exhibit 6] and they continued doing the same thing even after I filed a scheduled 13D on 5/9/2013 [exhibit 7] declaring at the top that I filed the lawsuit and gave information sufficient to finding it.
Then trying to use whatever communication method available to me I tried to inform the defendant about the lawsuit through a website containing the complaint and summons [exhibit 8], which I mentioned in my SEC scheduled 13D filing on 5/9/2013, and also through Emails containing the complaint and summons as attachments [exhibit 3] sent to the defendant and the corporation for which I received back an acknowledgement of there proper delivery [exhibits 1 and 2].
Unlike what the court seems to suggest, the SEC filings made by the defendant are a significant thing and they indicated very clearly that he was trying to avoid service.
Also, the court says that " Plaintiff does not state any other attempts or searches of public records to find Defendant schcolnik's actual residence prior to relying on substituted service through publication. "
Where does the court think I found the address the defendant was served at (according to the affidavit from the process server I hired)? I used an over the internet paid service and they use public records for that.
Also, my serving through publication equivalent was much better than the usual way of relying on publication. Since I used the SEC filings and public companies should know about SEC filings listed under their company SEC filings, there is no way the defendant can claim he did not know about the lawsuit.
In addition, I provided a link the defendant could have used to read the actual complaint and see a copy of the summons.
Any way, the address where my complaint was served on the defendant was, according to the defendant's affidavit, the address of his girlfriend and he used to "split time" between his alleged current address and that address for a period from "July 2010 until May 2012". He also claims that he has lived since May 2012 with his girlfriend in his alleged current address, yet the affidavit from the resident in that address with whom the complaint and summons were left states that resident lived there since May 1, 2013?
Also, my complaint was served on May 9 on the resident who moved in 9 days ago. That resident also ,according to his affidavit, told the process server that the defendant does not reside with him but the process server still left the complaint and summons with him. How many probabilities we need to build over each other to reach this end result in comparison with the explanatory thing that either the papers were served properly and/or things were arranged with the process server by the defendant? I already knew that the process server won't serve any thing unless it is with the permission and arrangement of the hedge fund guy here.
Any way we don't need to go deeper into analyzing how the service was performed. It was already clear that from the beginning the defendant was trying to avoid service and the claims above which he made in an attempt to show improper service actually strengthen that he was playing games and trying to avoid service.
"Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." (United Food & Commercial Workers Union v. Alpha Beta Co. 9th Cir.) I used SEC filings and one can hardly think of anything that would inform a public company CEO about something better than filing that with the SEC. Also, court citations out there speak about "substantial compliance" with rule 4 of the FRCP not absolute compliance. In addition , despite the defendant's clear attempt to avoid service I was able to serve him at an address that even according to his allegations owned by his girlfriend and he used to be there during last year.
Such service is clearly not in complete compliance with rule 4 but so was the case " in Union Asbestos & Rubber Co. v. Evans Prods. Co., 328 F.2d 949 (7th Cir.1964), service on a secretary was held good but the court noted the extenuating circumstances that the defendant was out of the office 75-80% of the time and that the notice was immediately communicated to the defendant." (Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc. 9th Cir.). In this case the defendant gave addresses which turned out to be bad (according to emails and affidavits from more than one process server) and continued to give those bad addresses. So he was "out of the office" the equivalent of 100 percent of the time.
It is funny how the same court that found that ordering me to serve the complaint within less than the time allowed by the same rule is an acceptable compliance with that rule, finds all what I did here as not sufficient to comply with that rule. I also gave the court the option to quash the service and ordering a new service, on the address alleged by the defendant's affidavit as his current address, by United States marshal or deputy marshal or by a person specially appointed by the court with the cost of that on me .
Also, as mentioned in my response to the defendant's motion, if the court want to insist that much on technicalities then it should have applied that same level on the defendant who did not serve his motion on me or even mention me in his certificate of service which renders the motion as if it was not filed
Defendant's certificate of service
[See International Controls Corp. v. Vesco, 556 F.2d 665,669 (2d Cir. 1977)(amended complaint remains inchoate until served under Rule 5(a)).]
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